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TAM-BYTES

June 19, 2017


Vol. 20, No. 25

TAM Webinars

Gun Dealer and Owner Liability in Tennessee: Client Counsel Tips


and Techniques, 60-minute webinar presented by James E. Wagner
with Frantz McConnell & Seymour in Knoxville, on Tuesday, July 18,
at 10 a.m. (Central), 11 a.m. (Eastern).
*Earn 1 hour of GENERAL credit
For more information, visit: www.mleesmith.com/guns-071817
or call us at (800) 727-5257.

Foreclosure Process and Case Management Strategies for


Tennessee Attorneys, 60-minute webinar presented by Mark
McGrady with Farrar & Bates in Nashville, on Thursday, July 20, at 10
a.m. (Central), 11 a.m. (Eastern).
*Earn 1 hour of GENERAL credit
For more information, visit: www.mleesmith.com/foreclosure-072017
or call us at (800) 727-5257.

Key Elements of Wills in Tennessee, 60-minute webinar presented


by Julie Travis Moss, with The Blair Law Firm in Brentwood, on
Thursday, July 27, at 2 p.m. (Central), 3 p.m. (Eastern).
*Earn 1 hour of GENERAL credit
For more information, visit: www.mleesmith.com/wills-072717
or call us at (800) 727-5257.

Tennessee Series LLC: Client Counsel Best Practices for Liability


Separation, 60-minute webinar presented by Michael Goode, with
Stites & Harbison in Nashville, on Wednesday, August 2, at 10 a.m.
(Central), 11 a.m. (Eastern).
*Earn 1 hour of GENERAL credit
For more information, visit: www.mleesmith.com/series-LLC-080217
or call us at (800) 727-5257.
Tennessee Probate Case Law and Legislative Update: What
Attorneys Need to Know, 60-minute webinar presented by Rebecca
Blair, with The Blair Law Firm in Brentwood, on Thursday, August 3,
at 2 p.m. (Central), 3 p.m. (Eastern).
*Earn 1 hour of GENERAL credit
For more information, visit: www.mleesmith.com/probate-080317
or call us at (800) 727-5257.

Parental Relocation in Tennessee: The Impact of the Aragon


Decision, 60-minute webinar presented by Kevin Shepherd, with
Shepherd and Associates PC in Maryville, on Wednesday, August 9, at
10 a.m. (Central), 11 a.m. (Eastern).
*Earn 1 hour of GENERAL credit
For more information, visit: www.mleesmith.com/relocation-080917
or call us at (800) 727-5257.

2017 Tennessee DUI Defense Update: Attorney Tips for the Best
Possible Outcome, 60-minute webinar presented by Joseph Fuson,
with Freeman & Fuson in Nashville, on Thursday, August 10, at 10 a.m.
(Central), 11 a.m. (Eastern).
*Earn 1 hour of GENERAL credit
For more information, visit: www.mleesmith.com/dui-081017
or call us at (800) 727-5257.

On-Site Events
Personal Injury Law Conference for Tennessee Attorneys
*Expanded to 2 days this year*

WHEN: THURSDAY & FRIDAY, SEPTEMBER 21-22


WHERE: Nashville School of Law
CLE: Earn 15 hours of CLE 12 hours of GENERAL and 3 hours of DUAL

SPEAKERS: Judge Thomas Frierson, Court of Appeals, Eastern District; Judge Ross
Hicks, Circuit Court, 19th Judicial District (Montgomery & Robertson counties);
Chancellor Ellen Hobbs Lyle, Davidson County Chancery Court/Business Court; Judge
Walter Kurtz, former Davidson County Circuit judge/former Tennessee senior judge;
Laura Baker, Law Offices of John Day, Brentwood; Brandon Bass, Law Offices of
John Day, Brentwood; J. Randolph Bibb, Lewis Thomason, Nashville; Jamie Durrett,
Batson Nolan, Clarksville; James Exum, Leitner, Williams, Dooley & Napolitan,
Chattanooga; Steve Gillman, Pryor, Priest, Harber, Floyd & Coffey, Knoxville; Michael
H. Johnson, Howard, Tate, Sowell, Wilson, Leathers, & Johnson, Nashville; Mary
Ellen Morris, Kinnard, Clayton & Beveridge, Nashville; Bryan Moseley, Moseley &
Moseley, Murfreesboro; William J. Rieder, Spears, Moore, Rebman & Williams,
Chattanooga; and Melanie Stewart, Heaton & Moore, Memphis.

HIGHLIGHTS: Ramifications of the Dedmon decision; researching automobile


insurance coverage; latest trends in suits against motor vehicle manufacturers;
admissibility of expert testimony is the expert competent and will the testimony
substantially assist the jury?; subrogation and lien issues Medicaid/Medicare liens,
hospital liens, and workers comp liens; effective motion practice for todays civil
practitioner; assessing the viability of a slip, trip, and fall case; effective use of social
media in litigation; medical discovery and special issues in uninsured/underinsured
motorist cases; advanced deposition strategies; review of recent personal injury cases;
accepting, declining, and terminating legal representation; and attorney ethics conflicts
of interest, attorney fees, and social media.

PRICING: $497 (full program) ($427 for any additional attendees from same firm);
$347 (one day only); and $247 (materials only)
*Take $50 off until August 11 (early bird discount)*

For more information, visit www.mleesmith.com/tn-personal-injury-law or call (800) 727-5257.

12th annual
Family Law Conference for Tennessee Practitioners
WHEN: THURSDAY & FRIDAY, OCTOBER 12-13 and
THURSDAY & FRIDAY, NOVEMBER 30 & DECEMBER 1
WHERE: Nashville School of Law
CLE: Earn 15 hours of CLE 12 hours of GENERAL and 3 hours of DUAL

OCTOBER FACULTY: David Anthony, Bone McAllester Norton, Nashville; Dawn


Coppock, Strawberry Plains attorney; Sandy Garrett, Chief Disciplinary Counsel, Board
of Professional Responsibility; Jason Hicks, Moore, Rader, Fitzpatrick & York,
Cookeville; C. Jay Ingrum, Phillips & Ingrum, Gallatin; Stanley A. Kweller, Jackson,
Kweller, McKinney, Hayes, Lewis & Garrett, Nashville; Sean J. Martin, Martin Heller
Potempa & Sheppard, Nashville; Chancellor Larry McMillan, chancery court, 19th
Judicial District (Montgomery and Robertson counties); Marlene Eskind Moses, MTR
Family Law, Nashville; Phillip R. Newman, Puryear, Newman & Morton, Nashville;
Judge Phillip Robinson, circuit court, Davidson County; Kevin Shepherd, Maryville
attorney; Greg Smith, Stites & Harbison, Nashville; Scott Womack, Lattimore Black
Morgan & Cain, Nashville; and Judge Thomas Wright, circuit court, 3rd Judicial District
(Greeene, Hamblen, Hancock & Hawkins counties)

DECEMBER FACULTY: Amy J. Amundsen, Rice, Amundsen & Caperton, Memphis;


David Anthony, Bone McAllester Norton, Nashville; Judge Mike Binkley, circuit court,
21st Judicial District (Hickman, Lewis, Perry, and Williamson counties); Chancellor
Jerri S. Bryant, chancery court, 10th Judicial District (Bradley, McMinn, Monroe, and
Polk counties); Judge Robert L. Childers, retired circuit court judge, Shelby County;
Dawn Coppock, Strawberry Plains attorney; Jason Hicks, Moore, Rader, Fitzpatrick &
York, Cookeville; C. Jay Ingrum, Phillips & Ingrum, Gallatin; Chancellor Larry
McMillan, chancery court, 19th Judicial District (Montgomery and Robertson counties);
Marlene Eskind Moses, MTR Family Law, Nashville; Phillip R. Newman, Puryear,
Newman & Morton, Nashville; Judge Phillip Robinson, circuit court, Davidson County;
Kevin Shepherd, Maryville attorney; Eileen Burkhalter Smith, Disciplinary Counsel,
Board of Professional Responsibility; and Greg Smith, Stites & Harbison, Nashville

HIGHLIGHTS: Protecting a clients separate assets; dividing/valuing marital


property; orders of protection/domestic violence issues; relative/stepparent/adult
adoptions; technology for the family law practitioner; modifying permanent
parenting plans; practical tips from judges across the state; hot topics in child
custody/property division; tax issues in divorce; civil and criminal contempt in
family matters; use of trusts in family law practice; discovery abuses and
remedies; dealing with children in a divorce case; tips for effective direct/cross-
examination; case law/legislative update; ethics and professionalism in family
law practice; and attorneys ethical use of social media

PRICING: $497 (full program) ($427 for any additional attendees from same firm);
$347 (one day only); and $247 (materials only)
$50 early bird discount until September 1 (October conference)
$50 early bird discount until October 20 (December conference)

For more information, visit www.mleesmith.com/family-law-conference or call (800) 727-5257.

10th annual
Tennessee Real Estate Law Conference
WHEN: FRIDAY, OCTOBER 20
WHERE: Nashville School of Law
CLE: Earn 7.5 hours of CLE 6.5 hours of GENERAL and 1 hour of DUAL

SPEAKERS: Kim A. Brown, Sherrard Roe Voigt & Harbison, PLC, Nashville; Jason
Holleman, West Nashville Law Group, Nashville; Anita I. Lotz, Farris Bobango PLC,
Memphis; Michael Patton, Baker, Donelson, Bearman, Caldwell & Berkowitz, PC,
Memphis; Elizabeth C. Sauer, Baker, Donelson, Bearman, Caldwell & Berkowitz, PC,
Nashville; Brooks R. Smith, Bradley Arant Boult Cummings LLP, Nashville; Wesley D.
Turner, Gullett Sanford Robinson & Martin PLLC, Nashville; Heather Howell Wright,
Bradley Arant Boult Cummings LLP, Nashville

HIGHLIGHTS: Kim Brown touches on many of the aspects of a commercial real estate
transaction by looking at resources and samples of documents that help to address the
various aspects of the transaction; Brooks Smith looks at inspection and diligence issues,
representations and warranties, covenants, and other details to making sure the sale goes
smoothly; Michael Patton reviews what events are covered by title insurance, how to
make a claim, and why title insurance companies deny claims and also discusses
litigation, arbitration, and the bad faith penalty; Heather Wright gives an overview of
insurance provisions in commercial leases, including coverage of tenant-installed fixtures
and improvements, coverage for damages and destruction of property, and waivers of
subrogation; Elizabeth Sauer explains special considerations for commercial and
investment transactions, including entity formation, CAP rate, zoning concerns, and 1031
exchanges; Anita Lotz details the closing process for commercial real estate
transactionsopening the closing, reviewing the sale agreement, reviewing the closing
package, and preparing and approving the documents and gives examples of closing
checklists; Jason Holleman reviews ethical concerns in boundary law, including attorney
fees, confidentiality, communication with unrepresented parties, and conflicts of interest;
and Wes Turner updates attorneys on the latest appellate court cases and legislation in
the real estate law area.

PRICING: $377 (full program) ($297 for any additional attendees from same firm);
and $197 (materials only)
*Take $50 off until September 8 (early bird discount)*

For more information, visit www.mleesmith.com/trel or call (800) 727-5257.

IN THIS WEEKS TAM-Bytes

Supreme Court reinstates aggravated stalking conviction when


defendant was found to have knowingly violated order of protection
prohibiting him from coming around his estranged wife, and when
defendants testimony that he knew there was order of protection in
place and that he was prohibited from having any contact with victim
was sufficient regardless of any ambiguity surrounding other aspects
of states proof on issue;
Court of Appeals affirms trial courts action in setting aside tax sale of
appellees property when appellees were not afforded due process and
were never notified of delinquent tax action;
Court of Appeals rules that trial court improperly placed burden of
proof on mother to show reasonable purpose for move rather than
placing burden on father to prove that [t]he relocation does not have
a reasonable purpose;
Court of Appeals says lack of interest in rehabilitation on part of
economically disadvantaged spouse does not alone entitle that spouse
to long-term alimony and remands case for court to consider and
make findings as to whether wifes rehabilitation is feasible;
Court of Appeals, in dispute among members of church, says that
although unincorporated religious association, such as church, may
incorporate, to do so and distribute all interests of church to
corporation would require consent of all members of church;
Court of Criminal Appeals rules that because defendant was found
guilty in municipal court of violating municipal ordinance, civil
offense, subject matter jurisdiction of circuit court in trial de novo was
limited to violation of municipal ordinance, and circuit court erred in
finding defendant guilty of violating state criminal statute; and
Court of Criminal Appeals holds facial constitutional challenge to
proscriptive statute is not subject to waiver provision of TRCrP 12.

SUPREME COURT

CRIMINAL LAW: Evidence was sufficient to convict defendant of


aggravated stalking when defendant testified that he had been given copy of
order of protection when he left jail, that he knew that there was an order of
protection, and that he knew he was prohibited from having any contact
with victim; intermediate appellate courts conclusion that defendants
testimony was inadequate to support knowingly violated element of
offense resulted from courts inappropriate and erroneous comparison of
some ambiguous proof with defendants own specific admission that he
knew about order of protection and its contents; offense of aggravated
stalking does not require proof that order of protection was technically
served on defendant. State v. Stephens, 6/16/17, Knoxville, Bivins,
unanimous, 12 pages.
http://www.tncourts.gov/sites/default/files/stephensrodneyopn_0.pdf

COURT OF APPEALS

TAXATION: Trial court properly set aside tax sale of appellees property
when appellees were not afforded due process and were never notified of
delinquent tax action; trial court found that notices sent to appellees in
Florida had been returned undeliverable for several years, that trustees
office had retained check with appellees Chattanooga address, but county
had made no effort to send notice to that Chattanooga address, and that after
2011 property taxes were paid online, it would have been reasonable for
county to check billing address for online payment it received; when notice
is due, process which is a mere gesture is not due process. Breakey v.
Sequatchie County, 6/12/17, Nashville, Armstrong, 8 pages.
http://www.tncourts.gov/sites/default/files/breakey.opn_.pdf
ESTATES & TRUSTS: When, pursuant to Deposit Account Agreement
and Disclosure, decedent and son (executor) would hold account as joint
tenants with right of survivorship unless designated otherwise on Signature
Card, and when Signature Card confirmed that account was held as joint
tenants with right of survivorship, CD properly passed to executor by
operation of law and was properly excluded by trial court from probate
proceedings; charging percentage attorney fees are not per se unlawful in
probate cases such that no attorney fees should be awarded; trial court
correctly identified applicable legal principle when reviewing attorneys fee
requests of $20,000, that being reasonableness of fee in consideration of
factors set forth in RPC 1.5(d), and trial court then properly applied that
principle to facts of case to support its conclusion that fee of $12,400,
consistent with 62 hours at attorneys hourly rate of $200 pursuant to his
contract with executor, was reasonable fee for attorneys legal services
considering, inter alia, difficulty of this estate. In re Estate of Bingham,
6/13/17, Nashville, Clement, 13 pages.
http://www.tncourts.gov/sites/default/files/inreestateofbingham.opn_.pdf

FAMILY LAW: In termination of parental rights case, evidence


preponderated against trial courts finding that Department of Childrens
Services (DCS) expended reasonable efforts to assist mother in establishing
suitable housing when DCS presented no evidence demonstrating that it
looked into nature of mothers mental health issues or considered how her
mental health issues may have contributed to her substance abuse or inability
to secure stable housing; while mother repeatedly reported to DCS that she
was close to finding suitable housing, despite knowing that mother had
mental health issues, DCS continued to accept her word for it and offered
no assistance beyond providing list of resources and discussions; while DCS
failed to prove by clear and convincing evidence existence of ground of
abandonment by failure to provide suitable home, two other grounds, i.e.,
persistence of conditions and substantial non-compliance with requirements
of permanency plan, supported termination of mothers parental rights to her
two children. In re Skylar P., 6/21/17, Knoxville, Bennett, 15 pages.
http://www.tncourts.gov/sites/default/files/in_re__skylar_p._et_al..pdf

FAMILY LAW: Evidence preponderated against trial courts denial of


mothers request to relocate to Texas with parties child on ground that
proposed relocation did not have reasonable purpose when trial court
improperly placed burden of proof on mother to show reasonable purpose
for move rather than placing burden on father to prove that [t]he relocation
does not have a reasonable purpose; while mothers motivation for moving
may very well be that she wants to be closer to her boyfriend, mothers
stated purpose was to accept job offer that allows her increased income, as
well as opportunity to work in her chosen field mother was offered job in
Texas that could lead to full-time teaching job in her chosen profession
and father did not show that mothers decision to move to pursue better
employment was unreasonable; fathers reliance on mothers purported
ulterior motive and lack of reasonable efforts was not enough to meet his
burden of proving that there was no reasonable purpose at all for mothers
proposed relocation; current standard under Tennessee law places much
more substantial burden on parent opposing relocation than before because it
is difficult, if not impossible, to prove negative. Stringer v. Stringer,
6/16/17, Nashville, Stafford, 11 pages.
http://www.tncourts.gov/sites/default/files/stringer.opn_.pdf

FAMILY LAW: Lack of interest in rehabilitation on part of economically


disadvantaged spouse does not alone entitle that spouse to long-term
alimony; because trial court failed to make adequate findings relative to
whether rehabilitation was feasible and whether award of rehabilitative
and/or transitional alimony would be appropriate, trial courts award of
alimony in futuro to wife is vacated, and case is remanded for court to
consider and make findings as to whether rehabilitation of wife is feasible.
Hallums v. Hallums, 6/21/17, Nashville, Dinkins, 8 pages.
http://www.tncourts.gov/sites/default/files/hallums.tracy_.opn_.pdf

CIVIL PROCEDURE: When dispute among members of church arose over


control of church, one group of members incorporated, and then corporation
filed suit against individual members of church seeking to quiet title to
certain real property, corporation lacked standing to bring action; although
unincorporated religious association, such as church, may incorporate, to do
so and distribute all interests of church to corporation would have required
consent of all members of church; even if unanimous consent of members of
church was not required, more notice of incorporation and transfer of
property to corporation was required. Church of First Born of Tennessee
Inc. v. Slagle, 6/13/17, Nashville, McBrayer, 11 pages.
http://www.tncourts.gov/sites/default/files/church_of_the_first_born_v._slagle.opn_.pdf

GOVERNMENT: Tennessee State Fairgrounds is recreational property


subject to TCA 39-17-1311 which permits person to possess guns or
knives when conducting or attending gun and knife shows, when such
program has been approved by administrator of recreational building or
property even though facility is sometimes rented and/or closed to public;
decision by Metropolitan Board of Fair Commissioners (Board) to terminate
all existing contracts with gun show promoters and to prohibit any additional
gun shows at Fairgrounds did not run afoul of preemption, i.e., legal
transfer of firearms, provision of TCA 39-17-1314(a), which provides that
General Assembly preempts field of firearm regulation to exclusion of
metropolitan governments [e]xcept as otherwise provided by state law;
Board was authorized to determine whether or not to approve gun show on
premises of Fairgrounds pursuant to TCA 39-17-1311. Tennessee Firearms
Association v. Metropolitan Government of Nashville, 6/15/17, Nashville,
Gibson, 15 pages.
http://www.tncourts.gov/sites/default/files/majority_opinion_2.pdf

COURT OF CRIMINAL APPEALS

CRIMINAL LAW: In case in which defendant was found guilty of


improper passing by city judge of Municipal Court of City of Church Hill
(City) and appealed to circuit court, and in trial de novo, defendant was
found guilty of violating TCA 55-8-113 and was fined $25, because
defendant was found guilty in municipal court of violating municipal
ordinance, civil offense, subject matter jurisdiction of circuit court in trial de
novo was limited to violation of municipal ordinance, and circuit court erred
in finding defendant guilty of violating state criminal statute; violation of
language of state criminal statute incorporated by cross-reference into
municipal ordinance is civil, whereas violation of state criminal statute itself
is criminal; judgment of circuit court is reversed, and case is remanded for
new trial to determine if defendant violated municipal ordinance of City.
City of Church Hill v. Elliott, 6/15/17, Knoxville, Holloway, 9 pages.
http://www.tncourts.gov/sites/default/files/city_of_church_hill_opinion.pdf

CRIMINAL SENTENCING: By its plain language, TRCrP 12 permits


claims of lack of jurisdiction to be raised at any time, and claim that
proscriptive statute is facially unconstitutional amounts to claim that trial
court lacks jurisdiction to impose conviction under statute, and hence, facial
constitutional challenge to proscriptive statute is not subject to waiver
provision of TRCrP 12; because TCA 40-35-121(b), portion of criminal
gang enhancement statute, is part of operative proscriptive statute and
because defendant has raised facial constitutional challenge to that statute,
TRCrP 12 waiver provision does not operate to bar appellate review of
defendants claim; because portion of gang enhancement statute used to
enhance defendants conviction and sentence was unconstitutional, judgment
of trial court imposing enhanced sentence for defendants gang affiliation is
reversed; judgment is modified to reflect Class B felony conviction of
aggravated robbery, and case is remanded for resentencing on newly-
modified conviction. State v. Woodard, 6/15/17, Knoxville, Witt, 17 pages.
http://www.tncourts.gov/sites/default/files/state_v._woodard_e2016-00676.pdf

COURT OF WORKERS COMP CLAIMS

WORKERS COMPENSATION: When employee was standing atop


cherry-picker platform raised off floor approximately 10 to 12 feet on
8/26/15, machine jumped, started shaking, and knocked [employee] off
balance, and employee, fearing he would fall, jumped off platform, injuring
his heel and lower back, employer did not satisfy its burden in establishing
affirmative defense of willful misconduct; when employee testified without
contradiction that he and others, including supervisors, sometimes failed to
wear harness without repercussions, and 8/13 form that employer asserted
documents its previous disciplinary action against employee does not convey
any particulars regarding rules violation on employees part, but rather
explains consequences for violation going forward, employer did not
satisfied its burden of showing bona fide enforcement of rule, element of
willful misconduct defense. Rogers v. Charles C. Parks Co., 3/28/17,
Nashville, Switzer, 7 pages.
http://trace.tennessee.edu/cgi/viewcontent.cgi?article=1768&context=utk_workerscomp

WORKERS COMPENSATION: When employee spent morning of


6/16/16 inspecting welds on rear-axle assembly, at end of his morning break,
as he tried to get up, employee was in excruciating pain, employee went to
emergency room and was diagnosed with aortic dissection, life-flight
helicopter transported him to Vanderbilt Medical Center for emergency
surgery, upon arrival, doctor recognized diagnosis of aortic dissection was
incorrect and halted emergency surgery, doctor diagnosed costochondritis,
and employee sought reimbursement of outstanding medical bills incurred
for emergency care. in order to prevail for recoupment of payment for
medical treatment, employee must prove causal link between recurrence of
costochondritis and his work for employer; employee is not likely to prevail
at hearing on merits in proving he suffered injury as defined by Workers
Compensation Law as he did not introduce physicians opinion to establish
any connection between recurrence of costochondritis and his employment.
Jackson v. Express Services Inc., 3/31/17, Nashville, Baker, 7 pages.
http://trace.tennessee.edu/cgi/viewcontent.cgi?article=1769&context=utk_workerscomp
If you would like a copy of the full text of any of these opinions, simply
click on the link provided or, if no link is provided, you may respond to
this e-mail or call us at (615) 661-0248 in order to request a copy. You
may also view and download the full text of any state appellate court
decision by accessing the states web site by clicking here:
http://www.tncourts.gov